Please read these Terms and Conditions (“Terms”) carefully before using the XploreNow website or any XploreNow products, software, applications, data, imagery, models, functionality and/or services provided to you on, from, or through the XplorNow website (collectively, the “Service”). Using the Service indicates that you accept these Terms and any policies and guidelines of XplorNow incorporated herein by reference. If you do not accept these Terms or such policies or guidelines, you may not use the Service.

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1. General.

The Service is owned and operated by XplorNow LLC. (“XplorNow,” “we,” “our” and “us”). XplorNow reserves the right to revise any of these Terms in our sole discretion at any time and without prior notice to you by updating this posting, such changes to be effective prospectively. Thus, you should visit this page periodically for changes. If you disagree with any changes to any of these Terms, your sole remedy is to discontinue your use of the Service. Your continued use of the Service after a change has been posted constitutes your acceptance of the change thereafter.

 

2. Prohibited Activities.

In using the Service, you must not:

• Send, post, upload or otherwise transmit to or through the Service any imagery, text or other content that is unlawful, infringing, harmful, harassing, defamatory, threatening, hateful, discriminatory, violent, fraudulent, vulgar, pornographic, or otherwise objectionable;

• Misrepresent your identity or affiliation in any way;

• Collect information about others;

• Advertise or solicit the sale of any product or service (unless you have a separate agreement to do so with XplorNow) or distribute spam;

• Interfere with the operation of or damage the Service;

• Violate any applicable laws or regulations; or

• Assist or permit any persons in engaging in any of the activities described above.

 

3. User-Submitted Information.

You must exercise caution, good sense and sound judgment in using the Service. You are solely responsible for any material you transmit to or through the Service (or to us through email). You agree, represent and warrant that any information you transmit to or through the Service (or to us through email) is truthful, accurate, not misleading and offered in good faith, and that you have the right to transmit such information. XplorNow has the right, but not the obligation, to monitor all conduct on, and content submitted to, the Service. Certain information collected from you on the Service is subject to XplorNow's privacy policy.  You understand that, except as otherwise provided in XplorNow's privacy policy, XplorNow does not guarantee confidentiality with respect to any material you submit to or through the Service.  Except as expressly provided in XplorNow’s privacy policy, you give XplorNowan unrestricted, irrevocable, perpetual, transferable, sub-licensable, worldwide, royalty-free license to use, reproduce, display, publicly perform, transmit and distribute any such material you submit, without any payment or accounting to you or others.  In addition, you waive any so-called “moral rights” in such material.  For any such material that you submit, you represent and warrant that:  (a) you have the right to submit the material to XplorNow and grant the licenses set forth above; (b) XplorNow will not need to obtain licenses from any third party or pay royalties to any third party; (c) the material does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (d) the material complies with these Terms and all applicable laws.

 

4. Unsolicited Ideas.

XplorNow does not accept or consider unsolicited ideas, concepts or know-how, including ideas for new products or technologies (collectively “Submissions”). You must not transmit any Submissions to or through the Service that you consider to be confidential or proprietary. Any Submissions that you transmit to or through the Service will be considered non-confidential and non-proprietary. Except as expressly provided in XplorNow's privacy policy you give XplorNow an unrestricted, irrevocable, perpetual, transferable, sub-licensable, worldwide, royalty-free license to use, reproduce, display, publicly perform, transmit and distribute any such Submissions, without any payment or accounting to you or others.  In addition, you waive any so-called “moral rights” in any Submissions.

 

5. Ownership and Use of the Service.

The materials made available on or through the Service are protected by copyright and other intellectual property rights, including all images and digital 3D model information available for viewing in our sub-contracted web-viewer (via Matterport Inc., “Matterport” web viewer (“Matterport Viewer”)), and, except as set forth below, the use on any website or other environment of any material available on or through the Service is strictly prohibited.

XplorNow and its licensors own all right, title and interest (including all associated intellectual property rights, in each case whether registered or unregistered, and related goodwill) in and to the Service.  XplorNow and its licensors reserve all rights in and to the Service not expressly granted to you in these Terms.

The Materials made available to you via XplorNow’s services are offered specifically to you for a limited period of time of “hosting” as specified by the contracted terms of the service, and for the express purpose contractually stated. These materials can only be used, disseminated, reproduced, displayed, linked to, promoted, transmitted and distributed over this specified time period and for this express purpose by those with the legal right to do so.

Any use outside of the above is prohibited.  We reserve the right to cease the “hosting” of any of the materials we create by our services in instances of disputes over legal authority of use or changes in agency representation.

No portion of the Service may be copied, reproduced, republished, modified, used to create derivative works from, decompiled, reverse engineered, disassembled, uploaded, posted, transmitted, exploited, or distributed in any way without the prior written permission of XplorNow or where applicable Matterport (other than as needed for your computer or device to interface with the Service).

Without limiting the generality of the previous sentence, you agree not to distribute in any medium any part of the Service without XplorNow's prior written authorization, unless XplorNow makes available the means for such distribution through functionality offered through normal use by the Service (such as the Matterport Viewer). You also agree not to access the Service through any technology or means other than through XplorNow, the pages of the Matterport website, the Matterport Viewer, or other explicitly authorized means XplorNow may designate.

In accordance with their Terms of Service, If you use the Matterport Viewer on your website, you may not modify, build upon, hide, or block any portion or functionality of the Matterport Viewer, including but not limited to links back to the Matterport website (or it’s affiliates). Any use of the Matterport Viewer on your website will be subject to these Terms.  You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any portion of the Service or enforce limitations on use of the Service or the content therein.  Any unauthorized use or modification of any of the materials available on the Service is a violation of the copyrights and other proprietary rights of XplorNow, Matterport and their licensors.

Written permission for any such unauthorized use or modification must be obtained from XplorNow & Matterport in advance; such requests should be submitted via an email to info@xplornow.com & info@matterport.com.  XplorNow reserves the right to discontinue any aspect of the Service at any time.

 

6. Trademarks.

All trademarks, service marks, logos and trade names on the Service, whether registered or unregistered, including but not limited to”XplorNow” are proprietary to XplorNow or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names (other than as needed for your computer or device to interface with the Service) without the prior written consent of the appropriate owner thereof.

 

7. Links to Other Websites.

For your convenience, the XplorNow Service may contain links to other websites. If you use these links, you will leave the XplorNow Service. XplorNow is not responsible for the availability or content of these other websites or for any viruses or other damaging elements encountered in linking to a third-party website, whether or not XplorNow is affiliated with the owners of such websites. In addition, providing links to these websites should not be interpreted as endorsement or approval by XplorNow of the organizations sponsoring such third-party websites or their products or services.

 

8. Jurisdictional Issues.

The Service is controlled and operated by XplorNow from its offices within the State of Utah, in the United States of America. XplorNow makes no representation that materials available on the Service are appropriate or available for use in other locations. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent such laws are applicable. Access to the Service from jurisdictions where the contents of the Service are illegal or penalized is prohibited. Software from the Service is further subject to United States export controls. No information or software from the Service may be downloaded or otherwise re-exported (i) into or to a national or resident of any country to which the United States embargoes or sanctions goods, services or technology; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By using information or software from the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

 

9. Termination.

XplorNow may terminate your use of the Service at any time in our sole discretion. Upon any such termination, you must destroy any material obtained from the Service and all copies thereof. The provisions of these Terms concerning Site security, prohibited activities, ownership, third-party copyrights, trademarks, user submissions, disclaimer, limitation of liability, indemnity, privacy, and jurisdictional issues shall survive any such termination.

 

10. Disclaimer.

The materials and functionalities available on the service are provided “as is” and without warranties of any kind. To the fullest extent permissible pursuant to applicable law, XplorNow disclaims, on behalf of itself and its affiliates and licensors, all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement. XplorNow does not warrant that the functions on the service will be uninterrupted or error-free, that defects will be corrected, or that the service will be free of viruses or other harmful components. XplorNow does not make any representations or warranties regarding the use or the results of the use of the materials or functions on the service in terms of their correctness, accuracy, reliability, results to be achieved, or otherwise. Applicable law may not allow the exclusion of implied warranties, so some or all of the foregoing disclaimers may not apply to you.

 

11. Limitation of Liability.

To the extent permitted under applicable law:  (a) under no circumstances, including, but not limited to, negligence, shall XplorNow or its affiliates or licensors be liable for any consequential, incidental or other indirect damages resulting from the use of, or the inability to use, the service, even if XplorNow or a XplorNow authorized representative has been advised of the possibility of such damages; and (b) the aggregate liability of XplorNow and its affiliates or licensors to you shall not exceed the total amounts paid by you to Matterport over the twelve (12) months preceding your claim(s). Applicable law may not allow some or all of this limitation of liability, so it may not apply to you.

 

12.  Indemnification.

You will indemnify, defend, and hold harmless XplorNow, its affiliates, and their respective directors, officers, employees, and agents, from and against any claim, demand, action, class action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses (including attorneys’ fees) arising therefrom (“Claims”), brought by any third party that is based on, or arises out of:  (a) your activities on or use of the Service; (b) your violation, or apparent violation, of any of these Terms; or (c) any allegation that any material you submitted to XplorNow violates any law or infringes any third party right, including any intellectual property or privacy right.  You shall not settle any Claim unless such settlement completely and forever releases XplorNow from all liability with respect to such Claim or unless XplorNow consents to such settlement in writing.

 

13. Site Security.

You are prohibited from violating, or attempting to violate, the security of the Service, including without limitation to conduct a denial of service attack or other attack. Any such violations may result in criminal and/or civil penalties against you. XplorNow will investigate any alleged or suspected violations and if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations.

 

14. Children.

The Service is intended for a general audience. XplorNow does not seek through the Service to gather personal information from or about children under the age of 13.

 

15. Privacy.

Personal information about you provided through the Service is governed by XplorNow's privacy policy accessible through the footer of the Service. As further provided in our privacy policy, XplorNow and its service providers may collect and use personal information and technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—to facilitate the provision of the Service to you. Through your use of the Service, you consent to the collection and use (as set forth in the privacy policy) of information we and our service providers collect from you, including the transfer of this information within and between the United States and/or other countries for storage, processing, and use by XplorNow, its affiliates and service providers, and third parties with which it has strategic relationships.  By providing your mobile phone number, you expressly consent to receive direct dial calls, and text messages from us relating to our product and services at that number.

 

16.  Policy Regarding Third-Party Copyrights.

XplorNow respects the intellectual property of others, and we ask our users to do the same.  XplorNow will promptly remove materials from the Service in accordance with the Digital Millennium Copyright Act (“DMCA”) if properly notified that the materials infringe a third party’s copyright.

If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide XplorNow’s copyright agent with the following information:   (a) a description of the copyrighted work or other intellectual property that you claim has been infringed; (b) a description of where the material that you claim is infringing is located on the Service; (c) your address, telephone number, and email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on behalf of the copyright or intellectual property owner; and (f) your electronic or physical signature.  You may submit this information to Xplor Now by email at info@xplornow.com or by mail to:  XplorNow LLC, 118 Sierra Bonita Ct, Mapleton, UT 84664. Attn:  Copyright Agent. XplorNow may disclose any communications concerning DMCA notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.

If you believe that your material is not infringing or has otherwise been removed by mistake, please provide XplorNow with a written counter-notification containing the following information:  (i) your name, address, and telephone number; (ii) a description of the material that was removed and the location on the Service where it previously appeared; (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; (iv) a statement that you consent to the jurisdiction of the United States District Court for the District of Utah), and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person; and (v) your electronic or physical signature.  You may submit this information by the methods described in the prior paragraph.  Please note that we will send any complete counter-notifications we receive to the person who submitted the original DMCA notice. That person may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of your counter-notification, we will restore the removed materials. Until that time, your materials will remain removed. We will provide a copy of the original DMCA takedown notice upon request.

Please note that if you fail to comply promptly with the foregoing requirements or any request from XplorNow for additional information, your DMCA notice or counter-notification may not be processed further.

 

17. Other.

These Terms shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any principles of conflicts of law. Any claims or litigation arising under these Terms will be brought by solely in state and federal courts located in Utah County, Utah and the parties specifically consent to Utah County, Utah, as the exclusive venue for any such proceeding.  In any such action, you and XplorNow irrevocably waive any right to a trial by jury.  The United Nations Convention of Contracts for International Sale of Goods, Uniform Commercial Code, and the Uniform Computer Information Transaction Act shall not apply.  If any provision of these Terms is unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and any policies and guidelines incorporated herein by reference constitute the entire agreement between the parties relating to the subject matter herein.

Any attempt by you to assign other than in accordance with this provision shall be null and void.  Unless otherwise specified herein, all notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and:  (a) if to XplorNow, delivered personally or sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to XplorNow LLC, 224 S. Main Street, #424, Springville, UT 84663, Attn: Legal Notices; or (b) if to you, by email or by posting on the Service.  No amendment of any provision of these Terms shall be effective unless made in accordance with Section 1 of these Terms or set forth in a writing signed by a representative of XplorNow and you, and then only to the extent specifically set forth therein.  No waiver by XplorNow of any condition or the breach of any provision of these Terms in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision.

 

18. Questions.

If you have any questions regarding these Terms, please submit your questions via an email to info@xplornow.com. We will endeavor to respond to you promptly.

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Last updated: January 1, 2020